Bill to Strip Boone’s ETJ Powers Passed Second Reading with Overwhelming Support 32-17 on Senate Floor

Published Wednesday, June 20, 2012 at 3:07 pm

By Jesse Wood

Update: June 20, 2012. N.C. Senate Bill 949, which would strip Boone’s ETJ powers, passed its second reading. A third and final reading, at which time the bill will possibly be debated at more length, has not been schedule, yet. The second reading passed with overwhelming support 32-17. (For more on what the bill and ETJ entail read below to previous article.)

On the Senate floor, one senator who was in opposition stated, “I think there are extremely important reasons why we grant [these powers]. I just generally think it’s a mistake when you start taking this away from cities.” For instance, he added that developments that might enter these areas don’t have any consideration for emergency vehicles on how they will get in and out of the area. Another senator who opposed the bill said the constituents and elected officials in the area were “perfectly capable” of deciding on this issue for themselves and didn’t feel it was necessary for the Senate to intervene on a local issue.

One of the 32 senators who were in favor of the bill said on Wednesday that he felt “it’s wrong” for municipalities to reach out and grab up to three miles of property outside the town’s limits and “hold it indefinitely.”

Senator Dan Soucek, of Boone, who sponsored the bill, stated on the Senate floor that constituents in the ETJ don’t have a voice “cause Boone hasn’t listened to them.” He said the Town of Boone has “grossly” over stepped their “authority.” He added that there is more than one municipality nearby, such as Blowing Rock, which “hasn’t abused their authority.”

June 20, 2012. Yesterday, a bill that would strip Boone’s ETJ (extra-territorial jurisdiction) powers was placed on the N.C. Senate calendar for a vote today; the senate convenes at 2:00 p.m.

If passed, the act becomes effective June 30, 2013. N.C. Senate Bill 949 states that “Notwithstanding any other provision of law, the Town of Boone shall not exercise any powers of extraterritorial jurisdiction as provided in Article 19 of Chapter 160A of the General Statutes.”

Boone enacted the ETJ in 1983 to plan for future growth and enforce land regulations. The ETJ extends one mile outside of town limits. According to Article 19, towns with populations greater than 10,000 can request an ETJ to extend to two miles. Towns with a population of more than 20,000 people can extend the ETJ to three miles beyond town limits.

Boone Mayor Loretta Clawson released a statement on June 4:

“Approximately 3,500 people will be affected within this area by not having zoning protection for their properties.

Should this bill become law, people who purchased their homes thinking they would be protected by zoning from land uses which might negatively affect them can no longer count on that protection, since any type of development will be possible anywhere. The Town will be unable to prevent high-density development on the mountains, which create Boone’s spectacular backdrop. Following visually disturbing developments, the Town adopted ordinances to prevent similar projects. These ordinances will be nullified if this bill is passed.”

However, ETJ residents cannot vote in town elections, do not pay town taxes and do not receive town services. The latter of which is why Senator Dan Soucek, a sponsor of the bill, is spearheading Senate Bill 949.

Soucek told High Country Press last week that that his bill was to help people who lived in ETJ area’s of Watauga County.

“My goal was not to take away the ETJ powers of Boone,” said Soucek. “It was to give a voice to the people in the ETJ who had felt ignored and bullied for years. They basically have regulation without representation.”

Boone Town Council member Andy Ball said if it passes, Boone’s ETJ areas would not be under any zoning restrictions, such as commercial, industrial or noise restrictions. Several town officials have already spoken out against the bill.

Last week, Director of Boone’s Planning and Inspections Department Bill Bailey added, “Once every eight to 10 days, I get a phone call from people about intense industrial development or a concrete plant going up next to their house. For the most part, residents want the zoning, so this is an interesting development.”

Below: Read Article 19, Which If Passed Boone Would Not Be Able to Exercise

(a) All of the powers granted by this Article may be exercised by any city within its corporate limits. In addition, any city may exercise these powers within a defined area extending not more than one mile beyond its limits. With the approval of the board or boards of county commissioners with jurisdiction over the area, a city of 10,000 or more population but less than 25,000 may exercise these powers over an area extending not more than two miles beyond its limits and a city of 25,000 or more population may exercise these powers over an area extending not more than three miles beyond its limits. The boundaries of the city’s extraterritorial jurisdiction shall be the same for all powers conferred in this Article. No city may exercise extraterritorially any power conferred by this Article that it is not exercising within its corporate limits. In determining the population of a city for the purposes of this Article, the city council and the board of county commissioners may use the most recent annual estimate of population as certified by the Secretary of the North Carolina Department of Administration.

(a1) Any municipality planning to exercise extraterritorial jurisdiction under this Article shall notify the owners of all parcels of land proposed for addition to the area of extraterritorial jurisdiction, as shown on the county tax records. The notice shall be sent by first‑class mail to the last addresses listed for affected property owners in the county tax records. The notice shall inform the landowner of the effect of the extension of extraterritorial jurisdiction, of the landowner’s right to participate in a public hearing prior to adoption of any ordinance extending the area of extraterritorial jurisdiction, as provided in G.S. 160A‑364, and the right of all residents of the area to apply to the board of county commissioners to serve as a representative on the planning board and the board of adjustment, as provided in G.S. 160A‑362. The notice shall be mailed at least four weeks prior to the public hearing. The person or persons mailing the notices shall certify to the city council that the notices were sent by first‑class mail, and the certificate shall be deemed conclusive in the absence of fraud.

(b) Any council wishing to exercise extraterritorial jurisdiction under this Article shall adopt, and may amend from time to time, an ordinance specifying the areas to be included based upon existing or projected urban development and areas of critical concern to the city, as evidenced by officially adopted plans for its development. Boundaries shall be defined, to the extent feasible, in terms of geographical features identifiable on the ground. A council may, in its discretion, exclude from its extraterritorial jurisdiction areas lying in another county, areas separated from the city by barriers to urban growth, or areas whose projected development will have minimal impact on the city. The boundaries specified in the ordinance shall at all times be drawn on a map, set forth in a written description, or shown by a combination of these techniques. This delineation shall be maintained in the manner provided in G.S. 160A‑22 for the delineation of the corporate limits, and shall be recorded in the office of the register of deeds of each county in which any portion of the area lies.

(c) Where the extraterritorial jurisdiction of two or more cities overlaps, the jurisdictional boundary between them shall be a line connecting the midway points of the overlapping area unless the city councils agree to another boundary line within the overlapping area based upon existing or projected patterns of development.

(d) If a city fails to adopt an ordinance specifying the boundaries of its extraterritorial jurisdiction, the county of which it is a part shall be authorized to exercise the powers granted by this Article in any area beyond the city’s corporate limits. The county may also, on request of the city council, exercise any or all these powers in any or all areas lying within the city’s corporate limits or within the city’s specified area of extraterritorial jurisdiction.

(e) No city may hereafter extend its extraterritorial powers under this Article into any area for which the county at that time has adopted and is enforcing a zoning ordinance and subdivision regulations and within which it is enforcing the State Building Code. However, the city may do so where the county is not exercising all three of these powers, or when the city and the county have agreed upon the area within which each will exercise the powers conferred by this Article.

(f) When a city annexes, or a new city is incorporated in, or a city extends its jurisdiction to include, an area that is currently being regulated by the county, the county regulations and powers of enforcement shall remain in effect until (i) the city has adopted such regulations, or (ii) a period of 60 days has elapsed following the annexation, extension or incorporation, whichever is sooner. During this period the city may hold hearings and take any other measures that may be required in order to adopt its regulations for the area.

(f1) When a city relinquishes jurisdiction over an area that it is regulating under this Article to a county, the city regulations and powers of enforcement shall remain in effect until (i) the county has adopted this regulation or (ii) a period of 60 days has elapsed following the action by which the city relinquished jurisdiction, whichever is sooner. During this period the county may hold hearings and take other measures that may be required in order to adopt its regulations for the area.

(g) When a local government is granted powers by this section subject to the request, approval, or agreement of another local government, the request, approval, or agreement shall be evidenced by a formally adopted resolution of that government’s legislative body. Any such request, approval, or agreement can be rescinded upon two years’ written notice to the other legislative bodies concerned by repealing the resolution. The resolution may be modified at any time by mutual agreement of the legislative bodies concerned.

(h) Nothing in this section shall repeal, modify, or amend any local act which defines the boundaries of a city’s extraterritorial jurisdiction by metes and bounds or courses and distances.

(i) Whenever a city or county, pursuant to this section, acquires jurisdiction over a territory that theretofore has been subject to the jurisdiction of another local government, any person who has acquired vested rights under a permit, certificate, or other evidence of compliance issued by the local government surrendering jurisdiction may exercise those rights as if no change of jurisdiction had occurred. The city or county acquiring jurisdiction may take any action regarding such a permit, certificate, or other evidence of compliance that could have been taken by the local government surrendering jurisdiction pursuant to its ordinances and regulations. Except as provided in this subsection, any building, structure, or other land use in a territory over which a city or county has acquired jurisdiction is subject to the ordinances and regulations of the city or county.

(j) Repealed by Session Laws 1973, c. 669, s. 1.

(k) As used in this subsection, “bona fide farm purposes” is as described in G.S. 153A‑340. As used in this subsection, “property” means a single tract of property or an identifiable portion of a single tract. Property that is located in the geographic area of a municipality’s extraterritorial jurisdiction and that is used for bona fide farm purposes is exempt from exercise of the municipality’s extraterritorial jurisdiction under this Article. Property that is located in the geographic area of a municipality’s extraterritorial jurisdiction and that ceases to be used for bona fide farm purposes shall become subject to exercise of the municipality’s extraterritorial jurisdiction under this Article.

(l) A municipality may provide in its zoning ordinance that an accessory building of a “bona fide farm” as defined by G.S. 153A‑340(b) has the same exemption from the building code as it would have under county zoning as provided by Part 3 of Article 18 of Chapter 153A of the General Statutes.